Zafar Pasha Chaudhry, J.--This judgment will dispose of the following four appeals which arise out of the common judgment and common FIR. No, 253/2002 registered with Police Station, Cantt.
Bahawalpur under Sections 377/342 PPC read with Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979:--
1. Crl. A. No, 18/1/2004 filed by Muhammad Afzal(i) Convicted u/S. 12 of the Ordinance and sentenced to 15 years R.I. fine of Rs, 50000/- in default one year R.I. (ii) Convicted under Section 377 PPC and sentenced to 10 years R.I. and fine of Rs, 50000/- in default one year R.I.
2. Cr.A. No, 19/1/2004 filed by Mohsin ImranConvicted under Section ;377 PPC and sentenced to 10 years RI and fine of Rs, 50000/- in default one year R.I.
3.Cr. A. No, 31/L/2004 filed by Shakil MasihConvicted u/S. 377 PPC and sentenced to 10 years R.I.
4. J.Cr.A. No, 106/1/2004 filed by Muhammad UmarConvicted u/S. 377 PPC and sentenced to 10 years R.I. and; fine of Rs, 50000/-, in default one year R.I.
The sentences of imprisonment awarded to appellant Muhammad Afzal under two counts were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was extended to all the appellants.
2. The prosecution case in brief as narrated by Hafiz Attique-urRehman aged about 14 years is that he was studying in Darul AloomMadina. On 11.8.2002 when he was passing through AI-Mohafiz Market Muhammad Afzal, accused/appellant met him. He posed himself as an employee of Military Police and took him in a room. Attique-ur-Rehman was kept in the room for about 10 minutes wherein Afzal appellant forcibly committed unnatural offence with him. Thereafter he was detained in the room from 8.00 p.m. to 11.00 p.m. After 11 p.m. he was taken to a quarter located within the same vicinity. Shakil, Urnar and Mohsin, appellants also committed sodomy with him turn by turn in that quarter. On his hue and cry, Bashir Ahmad from FIU and Zahid from Military Police reached there who rescued him. He was taken to Gulzar Mahal Military Police Office and then to Cantt. Police Station where he got his statement Exh.PG recorded. Exh.PG is the FIR registered in this case. After registration of the case, formal investigation was carried out. On conclusion of the investigation, the appellants were sent up to face trial where they were tried by Mr. Iftikhar Ahmad Khan, Additional Sessions Judge, Bahawalpur who convicted and sentenced them as noted above.
3. The prosecution in support of its case examined 8 witnesses. All the witnesses except Hafiz Attique-ur-Rehman, complainant and Dr. Umar Farooq (PW. 4) are from police and more or less are formal in nature. PW. 5 Dr. Muhammad Javed Akhtar and PW. 6 Capt. Dr. Muhammad Siddique examined the appellants to test their potency. All were found .capable of performing sexual intercourse. The investigation was conducted by Riaz Ahmacl. PW.
8. He furnished the details of the investigation carried out by him. On close of the prosecution case, the appellants were examined under Section 342 C.P.C. where they denied the allegations against them and pleaded their innocence.
4. The prosecution case is based on the solitary statement of PW. 7 Attique-ur-Rehman, the alleged victim. He narrated a very woeful story and stated that all the appellants committed sodomy with him one after the other. It is true that even solitary statement can be made basis for conviction provided the same inspires confidence and supported or corroborated by some other piece of evidence. In this caw the next important evidence is that of Dr. Umar Farooq, CMO who examined Attique-ur-Rehman aged about 15 years and his clinical examination revealed as under: "There were seen no marks of violence all around the body especially on knees and elbows. On perineal examination, a redness of canal mucasa as was observed. Sphinctor was normal by manual traction was painful. No stains seen around the perineum."
Two anal swa bs external and internal were also obtained and dispatched for -chemical examination. Similarly shalwar and qameez of the complainant/victim were sent to the Chemical Examiner. As per reports of the Chemical Examiner Exh.PC/1, PC/2 and PC/3, neither the swabs nor the clothes were found stained with semen. According to opinion expressed by the doctor after medical examination and examination of the reports of the Chemical Examiner, no act of unnatural intercourse had been performed with the victim.
5. The learned counsel appearing on behalf of the appellants have very briefly argued that there is no evidence whatsoever proving either the offence of abduction so as to maintain conviction under Section 12 of the Ordinance or offence of sodomy under Section 377 PPC.
6. After going through the evidence and the aforesaid reports, we find that the contention raised by the learned counsel is correct. The statement of Attique-ur-Rehman, the victim is not. supported either by the medico legal report or by the Chemical Examiner's Reports. n the contrary his assertion that he was subjected to unnatural offence by four appellants one after the other several times is absolutely not established through the medical examination. The convictions of the four appellants under Section 377 PPC and Section 12 of the Ordinance, therefore, are not maintainable.
The same are set aside.
7. We cannot, however, ignore the fact that Attique-ur-Rehman has no enmity or any motive to falsely implicate the appellants. The appellants have also not been able to explain as to why Attique-ur-Rehman had made incriminating statement against them. It appears that Attique-ur- Rehman was detained by the appellants and was subjected to indecent acts and excesses. He may be on instigation of someone or of his own accord came up with an exaggerated account of the incident. The detention of Attique-ur-Rehman by the appellants stands proved by his statement in Court. The appellants as such are held guilty of an offence under Section 342 PPC. All the appellants remained confined in judicial lockup and also in jail after their respective conviction.
We consider that the term of imprisonment already undergone by each of the appellants would be sufficient punishment. Therefore, each of the appellants is convicted under Section 342 PPC and sentenced to the term of imprisonment already undergone by each of them.
8. The three appellants namely. Muhammad Afzal, Mohsin Imran and Shakil Masih are present in Court on bail. They are discharged from a their bail bonds. Appellant Muhammad Umar son of Allah Wasaya is in jail. He be released forthwith if not required in any other case.